This article has been written by Adrian Mason.
Over the next few weeks and months we are going to hear a great deal more about so-called Henry VIII clauses as the European Union (Withdrawal) Bill goes through the later stages of the Parliamentary process. There has already been a furore about them with some Parliamentarians and constitutional lawyers arguing that left unchecked, they will lead to an unprecedented ‘power grab’ by the government. It hasn’t helped than these arguments have been generally couched in Westminster or lawyer-speak. A knowledge vacuum has developed which politicians with hidden agendas and some in the media are gleefully attempting to fill.
We must acknowledge that this is not the most scintillating of subjects. As a legal educator of many years I can attest that it is one of the driest areas of law imaginable. The public is not really interested in the workings of Parliament. We are content to let the process unfold and trust our politicians to represent our interests. So, for many, when it comes to terminology such as primary and secondary legislation, affirmative and negative resolutions or Executive and Legislator, the switch-off button is close by! We just want our politicians to get on with it. However, the concern arises when some of these same politicians use this public apathy or lack of understanding to further a political aim.
What then are Henry VIII clauses, how they originated and the purposes they serve? They originated from the King who forced the passing of the Statute of Proclamations 1539 giving him the right to change Parliamentary decisions. The modern form is not that draconian and has checks and balances built into the system. Firstly, let us look at some of the terminology. An Act of Parliament is known as ‘primary legislation’. A Henry VIII clause is a section put into an Act which authorises the use of ‘secondary legislation’. Think of secondary legislation as being like the Act’s instruction manual. If you buy a television you also get an instruction manual on how to use it. It is the same with an Act of Parliament. Secondary legislation sets out instructions of how to use the Act, who can use it and the scope it gives them. This can be a minister, civil servant, local authority or any other party stated in the Act. Crucially, this is all authorised by Parliament beforehand. If, subsequently, a minister or any other authorised person or body abuses the power given to them or, circumstances change, Parliament has procedures open to it to amend, add or repeal the secondary legislation. As an added level of security, the courts can stop a party from acting ‘beyond the powers’ given to them under the Act. We call that, acting ultra vires.
Having established what Henry VIII clauses are, why do we have them? Firstly, critics are quick to point out that the use of these Clauses has substantially increased over the last few years. In 1932 the Donoughmore Committee found that between 1888 and 1929 only nine Acts of Parliament contained these clauses. However, Henry VIII clauses were used extensively in the European Communities Act 1972 setting out the instructions on how we incorporated EU rules, regulations and directives into our domestic law. Such a mammoth task could not have been achieved in such a short timescale without them.
Thousands of pieces of EU legislation have passed through Parliament since then, unimpeded by any scrutiny, based upon the instructions within the European Communities Act 1972 and subsequent amendments. Parliament does not have enough time available to look into every small detail and the steady rise in the use of Henry VIII clauses can be attributed in no small part to the EU. It can only be right that we use the same rules to extricate ourselves from the extraordinary number of rules and regulations that have been imposed upon us from Brussels. Those who tell us otherwise are more likely to be doing so in the hope of frustrating the will of the people by bogging us down in a legislative quagmire for years to come.
Whilst Labour shouts ‘power grab’ as we now extract ourselves from the European Union, it is perhaps pertinent to point out that no such claims of ‘foul’ were heard from their benches during the thirteen years they were in government. In fact, a spectacular power grab of their own took place in 2006 when they pushed through the Legislative and Regulatory Reform Act 2006 which gave ministers power to make any provision by order if it will remove or reduce a ‘burden’ resulting from legislation. This included the heading ‘administrative inconvenience’. It is therefore hypocritical to now accuse the Conservatives of power grabbing.
The attempt by the government to include Henry VIII clauses within the European Union (Withdrawal) Bill is purely a matter of utility, made all the more necessary by the limited time available. Their scope is limited and, contrary to what is being said by the Bill’s opponents does not amount to a power grab at all. In one of the most important pieces of legislation ever, it is sensible that ministers and civil servants are given the power to amend matters such as wording that would no longer be applicable once we leave the EU. Hysteria amongst some of our political classes is not based on legal reality and has much more to do with political point scoring. For the last forty-four years we have seen Henry VIII hard at work in the glistening buildings of Brussels.